ILLINOIS CENTRAL GULF RAILROAD COMPANY d.b.a CANADIAN NATIONAL/ILLINOIS CENTRAL
LUTHER W. McLAIN
DATE OF JUDGMENT: 08/13/2013.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT
COURT, TRIAL JUDGE: HON. TOMIE T. GREEN.
FOR APPELLANT: CHARLES HENRY RUSSELL, III, GEORGE H. RITTER.
FOR APPELLEE: DAVID NEIL McCARTY, ROBERT WALTER SCHMIEDER.
BEFORE DICKINSON, P.J., PIERCE AND COLEMAN, JJ. DICKINSON AND RANDOLPH, P.JJ., LAMAR AND PIERCE, JJ., CONCUR. WALLER, C.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J.
[¶1] Luther W. McLain filed suit in 2004 against Illinois Central Railroad. He alleged that Illinois Central's negligence caused his degenerative back injury. At trial, McLain had improper contact with a juror, committed perjury on the stand, and solicited a witness to commit perjury on the stand to corroborate his story. The trial judge reserved sanctioning McLain until after the jury verdict. The jury found for McLain, assessed his damages as $150,000, and judgment was entered accordingly. Thereafter, the trial judge sanctioned McLain $500 for juror contact and $10,000 for solicitation of a witness. We affirm the existing sanctions, but we hold that the trial judge abused her discretion in failing to impose further sanctions. Given the severity of committing perjury and solicitation and the cumulative effect of the violations taken as a whole, we reverse the judgment against Illinois Central, and we render judgment here in favor of Illinois Central.
Facts and Procedural History
[¶2] Luther McLain began working for Illinois Central Railroad (d/b/a Canadian National/Illinois Central) in 1970 and retired in 2002. In 2001, McLain was diagnosed with spondylolisthesis, disc degeneration, and a disc rupture. In 2004, McLain brought the instant suit against Illinois Central claiming that Illinois Central was negligent in failing to provide McLain a safe place to work, safe methods for working, safe tools, and enough manpower. Illinois Central denied the allegations.
[¶3] During discovery, in his deposition, McLain stated the heaviest thing he had lifted while working at Right of Way Consultants was a flag. The following exchange took place:
Q. . . . [W]hat is the heaviest thing you've had to pick up while working for Right of Way Consulting?
A. We have flags that we talked about the time before we set.
Q. Right. I remember that. Is the heaviest things you've had to pick up --
Q. -- while working for Right of Way?
A. Yes, sir. They -- they not heavy.
When the trial began, a juror was excused because, against the trial judge's explicit instructions, McLain started a conversation with the juror on the elevator. The juror testified to the following:
We got on the elevator together, and [McLain] said good morning. I said good morning and said it was a good day to be alive. And he made a comment and said that -- I said we know what's on this side, but we don't know what's on the other side. And he said that you've got to be stayed up, packed up and
ready to go. And I said yes, sir, and that was the end of the conversation.
The trial judge reserved sanctioning on the issue until the verdict was returned. During McLain's testimony, the following exchange took place between Illinois Central's attorney and McLain:
Q: Now, you were telling Mr. Schmieder that it's not a very physical job working for Right of Way Consultants, correct?
Q. And what's the heaviest thing you have to lift; your flag?
A. Yes, the flag goes along with the job.
Q. All right. So you're saying the heaviest thing that you have to lift for Right of Way Consultants on the job is just the flag that you use to flag people with?
A. You've got, you know, a small hammer you drive in the ground with.
Q. A small hammer?
A. Yes, sir.
Q. Okay. And that's what you said in your deposition when we asked that question also, isn't it?
A. I believe that's right, yes.
Q. Just a small hammer and a flag, that's the heaviest thing that you have to lift, right?
A. That's right.
Q. All right. Now, do you recall talking to Mr. Cecil Coker here recently over the phone?
Q. You're aware Mr. Coker is going to be testifying in this ...